Gomez v. Scribner

The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

This is a Petition for Writ of Habeas Corpus. Respondent has moved to dismiss the Petition as untimely. On December 14, 2007, Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation recommending that the Motion to Dismiss be granted. No objections have been filed. For the reasons stated below, the Court adopts the well-reasoned Report and Recommendation of the Magistrate Judge and grants Respondent's Motion to Dismiss.

A district judge "may accept, reject, or modify the recommended decision" of a Magistrate Judge on a dispositive matter. F.R.C.P. 72(b); see also 28 U.S.C. §636(b)(1). Moreover, "the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." Id. "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise . . . . Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert denied, 157 L.Ed.2d 182 (2003) (emphasis in original).

In the Report and Recommendation, the Magistrate Judge correctly considered the Petitioner's arguments and determined that Petitioner's Petition is barred by the applicable statute of limitations. This Court adopts in full the Report and Recommendation. Accordingly, Respondent's Motion to Dismiss is GRANTED. Petitioner's Petition is DISMISSED WITH PREJUDICE as untimely.

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